The accused stands charged with two offences which are set out on the indictment. He was arraigned before a jury on 11 February 2016 and pleaded not guilty to each count.
The complainant is his natural daughter. The Crown's case is that between 24 August 2013 and 17 February 2014 the complainant was at the accused's residence. The accused and the complainant's mother had been married, but had separated sometime previously. The complainant was at the accused's premises along with her siblings.
The Crown's case is that the accused asked the complainant to come inside the house and there he sexually interfered with her. The way the Crown opened its case was that that sexual interference involved the accused penetrating the complainant's vagina with his finger or fingers, thus giving rise to the allegation of sexual intercourse because of the extended definition of sexual intercourse within the Crimes Act.
The balance of the allegations contained within each, which are identical in form, were not in dispute, namely that at the time the complainant was under the age of ten, namely seven, and that at the relevant time she was under the authority of the accused. Thus the only topic in issue was whether the sexual intercourse took place.
Ms Hall opened the accused's case briefly to indicate to the jury that the accused's response to the Crown's allegation was that no such sexual intercourse took place, and implicit in what she said ‑ mainly because any refinement of that topic had not arisen at that stage, that there was no sexual impropriety at all as between the accused and his daughter. Thus the way the case was, after the opening both by the Crown, and Ms Hall on behalf of the accused, was that it was anticipated that would be the contest, namely, whether or not there was any sexual impropriety between the accused and his daughter, but bearing in mind that the Crown's allegation was one of sexual intercourse.
The complainant gave evidence. Her evidence‑in‑chief was in a form of a recording of an interview between herself and a police officer, and another member of the JIRT team from Community Services, as is conventionally the case in cases such as this. There was a transcript of that interview, which was an aide memoire to it, and the relevant part of the interview was to the effect that the accused had inserted his finger into the complainant's vagina on two separate occasions which gave rise to the two separate charges, as the indictment discloses.
The reason why the Crown pleaded its case as it did is undoubtedly because of the language used within that interview and no criticism is levelled at the Crown because of that. During the course of cross examination some flaws were revealed in the Crown's proof, and in particular, a part of the cross examination and I do not have the transcript before me at the moment, but by memory the cross examination is that the complainant said that she did not understand the meaning of the word "inserted" and the tenor of the cross examination was to the effect that her allegation did not include penetration of her vagina to any extent, as the extended definition of sexual intercourse would require as a matter of proof in these cases.
The Crown properly sought to re-examine the complainant on this topic, and her evidence did not, in effect, deviate from what she had to say in cross examination. Subsequently, during the course of the debate on the topic which gives rise to these reasons, the Crown very properly disclosed that he and his instructing solicitor had had a further conference with the complainant about what in fact had happened to her, and paraphrasing what the Crown says, but I hope accurately reflecting what he said, she told them that he had put his hand, or fingers, inside her underpants, but in fact had put his fingers across her vagina and had not in fact inserted his fingers into her vagina. Thus the Crown properly conceded that in those circumstances, the complainant having completed her evidence, the Crown did not anticipate being able to demonstrate a case capable of sustaining a conviction to either of the counts in the indictment as pleaded.
The Crown anticipates that the evidence that remains to be given in this case will not change that position. It anticipates that there will be some evidence of complaint, and some context evidence, and the evidence of a police officer, and that's about it. But very properly it says that none of that will affect what is presently before this jury in terms of the Crown being able to demonstrate that element of the charge, namely, proof of sexual intercourse.
In the to-ing and fro-ing the Crown told me, on Friday, eventually - and this is absolutely levelling no criticism of this Crown Prosecutor at all, but the Crown's last position was that revealed as a result of a telephone conversation which occurred between this Crown and the Director at 5 to 2 last Friday, that the Director had entered a nolle prosequi in relation to each of the charges, and the Crown, on instructions, said that as far as the Director was concerned the position of this Court was that both the jury, and I, were now functus officio, and accordingly I had no option, as the trial judge, but to discharge the jury because they, like me, were functus.
Ms Hall indicated that she opposed my discharging of the jury on the basis that the course taken by the Director was one which I could reject in that it constituted an abuse of process. I should indicate now that I accept that submission. I anticipate that if needs be I shall review these reasons and flesh them out beyond what I now propose to say.
This question summonses two fundamental but conflicting propositions, which inevitably give rise to the tensions which hopefully I will describe. The accused was arraigned before me and a jury panel and entered not guilty pleas, thus placing himself on his country. A jury was empanelled, sworn or affirmed and then charged, in conventional terms, with the task of determining whether the Crown has proved its case; in other words, to listen to the evidence and make a decision as whether the Crown had proved beyond reasonable doubt his guilt, and if it had, to find him guilty, and if not, not guilty. That is a fundamental constitutional arrangement in this state.
As Ms Hall points out in her written submissions to me, that gives rise to what Lord Goddard described in R v Hayes [1951] 2 KB 29 as, "Once a prisoner is in the charge of a jury, he can only be convicted or discharged by verdict of the jury." I think that starkly puts the proposition.
Against that, the Director's powers are contained relevantly within subs (2) of s 7 of the Director of Public Prosecutions Act 1986, which is as follows:
(2) The Director has the same functions as the Attorney General in relation to:
(a) finding a bill of indictment, or determining that no bill of indictment be found, in respect of an indictable offence, in circumstances where the person concerned has been committed for trial,
(b) directing that no further proceedings be taken against a person who has been committed for trial or sentence, and
(c) finding a bill of indictment in respect of an indictable offence, in circumstances where the person concerned has not been committed for trial.
The Director's position as is pressed by the Crown Prosecutor is that the Director's power vested in him is the same as that power that was vested in the Attorney General prior to the enactment of the Director of Public Prosecutions Act 1986, and I do not think that is a controversial proposition.
There are some trite propositions of law that can be expressed now, and the first is that the Director can enter a nolle prosequi at any stage up until verdict. As the Crown rightly indicated, there might be some circumstances where a nolle can be entered after verdict, but that does not concern this Court. What remains then is whether there is any power in this Court to prevent that course being taken by the Director, in other words, to force, in effect, the trial to continue. The situation that prevails here is to be distinguished from a situation where the Director either no bills or enters a nolle prosequi before an accused person is in the charge of a jury.
The practice is common for the Director to no bill matters before a trial commences and after an indictment has been presented to this Court, to any Court, for that matter but I think it is important to draw a distinction between the two situations, for reasons I will come to in a moment.
This Court has an inherent power to protect is processes (see Jago v District Court (NSW) (1989) 168 CLR 23). Jago was a case which was decided after a controversial period in New South Wales in particular where applications for stays of proceedings became more or less the flavour of the month and eventually the High Court crystallised principles that related to that topic in Jago.
A question that has occupied my mind is the potential exercise of that power. It seems to me that s 7(2) does not vest in the Director an absolute power. The exercise of that power is subject to the power of this Court to control its processes as identified by Jago. In other words, where the Court identifies what is properly described as an abuse of process, then the Court has the supervisory ability to prevent that abuse of process by refusing to allow the proceedings to be terminated by the purported exercise by the Director of a power pursuant to s 7(2) to enter a nolle prosequi, thus purporting to deprive this Court of jurisdiction.
This question is not without controversy. There have been a number of decided cases on the topic, particularly arising out of the exercise of inherent power by Courts in Queensland, South Australia and Western Australia particularly in cases that have been brought to my attention. The fact that the Director can enter a nolle has been recently addressed by Price J in Aouad v The Queen [2013] NSWSC 760. As I said previously, that proposition is not in dispute. In that case the accused was not in the charge of the jury at the time that the nolle was entered, which to my mind is of significance. It is the law that presentation of an indictment is clearly and exclusively within the domain of the executive government. A Court cannot oblige the Director to present an indictment.
There may be other avenues available to the Court, but one of the things that is patently clear is that authority has consistently held that there is no capacity in the Courts to oblige the Director to present an indictment, or for that matter, the Attorney. It may well be that collateral relief is available, such as an application for a permanent stay of any potential indictment subsequently, but that is a different question. What distinguishes this case is that these charges are now very much within the realm of the judicial arm of government, in that the accused has been arraigned, has entered a plea, a jury has been empanelled, sworn or affirmed, and charged with the task of determining a verdict.
A matter of fundamental concern to me in considering this application is the question of why this application is being made. Discharging a jury is a step which is taken reluctantly by trial judges, but in some cases it is essential, such as where there has been a miscarriage of justice on the basis that a witness has inadvertently blurted something out which is of significant prejudice to an accused but incapable of being satisfactorily resolved by a direction. In other words, a discharge to prevent an injustice in those circumstances. In this case nothing has been put to me as to why this course is being taken, other than what I conclude, inferentially at least, from what I regard as the overwhelming conclusions based upon what has happened in this Court so far, is that the Crown cannot prove its case beyond a reasonable doubt because of the evidence that has been given by the complainant thus far.
The Crown concedes, and properly so, that the totality of the evidence given by the complainant is such that would lead to a not guilty verdict in this case, and that the evidence to be called would not remedy that situation from the Crown's perspective. The Crown says that the interstate cases are distinguishable because the language that vests power in the prosecutorial authorities in the various states in their statues is different from that contained in subs (2) of s 7 of the Directors Act in New South Wales.
For instance, in The DPP v B [1998] HCA 45; (1998) 155 ALR 539, the relevant statute was the Criminal Law Consolidation Act 1935 (SA), and in particular s 350(1A) of it. What was of significance in that case, so the Crown says, was the insertion of the additional words, "at the trial," which the Crown says is qualifying language which is not present in the New South Wales legislation, in other words, that the New South Wales legislation is unfettered by such words. I have my doubts as to whether that makes any difference in this case. The section in question related to the capacity of a trial judge to reserve a question of law. The plurality decided that as the question of law had arisen before the accused was arraigned there was no trial and therefore the question had not arisen "at the trial".
As the headnote accurately reflects whether to enter a nolle at that stage was in the province of the executive. That proposition is entirely consistent with the view I have taken here and clearly distinguishable from the position here whether or not there is specific language in the Director's Act in New South Wales.
It should also be noted that the purpose of the South Australian legislation is not to empower the Director but the trial judge.
The plurality was at pains to distinguish the two situations which are relevant here, namely where a nolle or a no bill had been entered before the accused came within the charge of the jury, and one where he was in the charge of the jury. In that case the nolle was entered after he had been arraigned but before he was placed in the charge of a jury. In fact, he was arraigned as part of the quasi administrative arrangements in South Australia, no doubt to vest the District Court in that State with jurisdiction, a not unfamiliar process in New South Wales. At para 22 their Honours said the following:
[22] The accused's trial not having begun and the decision being a decision about whether to continue a prosecution, the question whether to do so was a matter which fell within the province of the executive. It was not a question which arose at the trial of an accused. And the trial not having begun, no question could arise whether the entry of a nolle prosequi constituted an abuse of process. Other considerations may have arisen (we do not say they would) if the question had been one relating to the continuation of a trial that had already begun or had been whether prosecution of a fresh information amounted to some abuse of process. But those questions did not arise here.
To my mind that represents the caution that the Courts have about this topic, particularly given what are conflicting circumstances, namely, the asserted capacity of the Director to enter a nolle prosequi at any stage before verdict and the fact that the accused is in the charge of the jury. The New South Wales case that I was taken to was R v GKA (1998) 99 A Crim R CCA 60619/97.
In that case a nolle that was entered prior to the accused being placed in the charge of the jury. There Cole JA, with whom Gleeson CJ and Barr J agreed, said as follows:
"It follows, in my view, that once the Director of Public Prosecutions exercised the power under s 7(2)(b) and communicated that to the Court, the Court was deprived of a power to further proceed upon the current indictment. It follows that the accused person was not entitled to have a jury empanelled or a directed verdict of not guilty."
I am of the opinion that that is different to the situation that prevails here, in that the jury has been empanelled, and the accused is in the jury's charge, thus to my mind the factual basis is different. The legal status of the accused is substantially altered by the fact that he is in the jury's charge compared to the situation in which GKA was at the time that the Director entered the nolle prosequi. The fact that a judge has the power to reject a nolle prosequi was considered in a South Australian case, A Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 88 A Crim R 1, Michael Charles Baenisch, and in particular the judgment of Debelle J.
In that case the accused was not before a jury. It had been listed for trial at a time when the nolle prosequi was entered by the DPP in that State. His Honour in a very careful judgment noted that, "The director had a capacity to enter a nolle prosequi at any stage before verdict" see para 3. His Honour noted at para 9 the following:
"Although the principle that the Court has no jurisdiction to review the exercise of the power to enter a nolle prosequi has been reaffirmed as recently as 1995 in Lorkin, courts in Queensland and Western Australia have exercised their inherent jurisdiction to prevent abuse of process and have refused to permit the entry of a nolle prosequi."
Then later on in that paragraph at p 9, after quoting a number of well known cases, including Jago, in relation to the inherent power of this Court to prevent an abuse of process, His Honour stated:
"The jurisdiction exists in civil and criminal proceedings. In criminal proceedings, the power of a court to protect itself from abuse of process is not limited to traditional notions of abuse of process or to defined or closed categories: see Jago at 28; 310 per Mason CJ and at 74; 344-345 per Gaudron J. The power may be exercised as and when the administration of justice requires: See Jago at 74; 344-345 per Gaudron J. The jurisdiction will be exercised to prevent an abuse of process or the prosecution of a criminal proceeding which will result in a trial which is unfair see Barton at 95 to 96."
At p 10, again within the same paragraph, His Honour cited a passage from the joint judgment in William v Spantz (1992)174 CLR 509 at 520:
As Lord Scarman said in Sang [1980] AC 402 at 455; (1979) 69 Cr App R 282 at 306, every court is 'in duty bound to protect itself' against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J referred to them in Moevao v Department of Labour at 481 in a passage which Mason CJ quoted in Jago 30; 311-312. The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice. As Richardson J observed in Moevao v Department of Labour (at 482), the court grants a permanent stay:
'in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes…that the court processes are being employed by ulterior purposes or in such a way…as to cause improper vexation and oppression.'
Those sympathies were picked up by Mason CJ in Jago between p 311 and 312 and by Mason, Deane and Dawson JJ in Walton v Gardiner (1993) 177CLR 378 at 395-6.
It seems to me that in this case what has unfolded is not unfamiliar, that is, that a Crown witness who is essential to the Crown case has not lived up to proof. The jury's task in determining whether the Crown has satisfied it beyond reasonable doubt as to the guilt of the accused is to assess the evidence given by Crown witnesses. If the jury concludes that that evidence is insufficient to enable it to conclude beyond a reasonable doubt as to the guilt of the accused, then only one verdict is available, namely, not guilty.
Clearly, in this case, as the Crown properly concedes, as the evidence presently stands and that the Crown does not anticipate that any further evidence will change this position, then the jury ought properly find the accused "not guilty". What is more the Crown concedes, that once the Crown closes its case, and an application is made for a verdict by direction, that I ought properly give that direction to this jury in this case.
It seems to me that to enable the Crown to no bill the case at this stage has inherent in it some dangerous concepts. I do not for a moment think that what has been proposed by the Crown has behind it any base purpose, but that is not necessarily the point. The accused is in the charge of the jury; he has put himself on his country, and is constitutionally entitled to its verdict. To take the course that the Crown says is mandated by the DPP entering a no bill would be a step which has the taint of abuse of process about it. It interferes with the normal course of a trial. There is no collateral matter such as any external intervention which could be described as so unfairly prejudicial to an accused, or the Crown for that matter, which would induce a mistrial in this case; there is no suggestion that the trial has otherwise miscarried.
The only reason that one can conclude that the course has been taken is because the jury has to, in the circumstances that I have described, reach a not guilty verdict in this case, on the basis of the evidence that it has before it.
One of the vices that I am mindful of is that the law is that by entering a nolle prosequi the Crown is not precluded from arraigning the accused again on precisely the same charge, before a different jury. The Crown has properly indicated to me that this is not going to happen in this case, if this case is no billed and the jury discharged. That is not to say that the Crown might not arraign the accused on a different count, such as, for instance, that the accused committed an act of indecency upon the complainant. Ms Hall makes no complaint about that. The possibility remains that the accused is still in jeopardy of being prosecuted again for the matters which are contained on the present indictment, in circumstances where, the way the evidence stands at the moment, the overwhelming probabilities are that he will get a verdict in his favour and would be subsequently entitled to rely upon it autrefois acquit.
I am of the opinion that in circumstances, where the trial has not otherwise miscarried, to allow the Director in effect to affect a termination of this trial by entering a nolle prosequi would be an abuse of process, and thus I refuse to discharge this jury.
[2]
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Decision last updated: 22 February 2016